What is prosecutorial discretion in immigration law?


Prosecutorial discretion in immigration law refers to the authority of immigration enforcement agencies, such as U.S. Immigration and Customs Enforcement (ICE), to decide whether and to what extent to enforce immigration laws against an individual. This discretion allows officials to prioritize cases and allocate resources effectively, focusing on individuals who pose the greatest threat to public safety and national security.

Key Aspects of Prosecutorial Discretion:

  1. Forms of Prosecutorial Discretion:
    • Deferring Action: Delaying or suspending deportation proceedings against an individual.
    • Administrative Closure: Temporarily closing a case, removing it from the active docket, but not providing a final resolution.
    • Stay of Removal: Temporarily halting the deportation of an individual.
    • Termination of Proceedings: Ending deportation proceedings against an individual entirely.
    • Issuance of a Notice to Appear (NTA): Deciding not to issue an NTA, which is the document that initiates removal proceedings.
  2. Factors Considered:
    • Humanitarian Factors: The individual’s family ties in the U.S., length of residence, community contributions, and whether they have U.S. citizen or lawful permanent resident relatives.
    • Health Considerations: The individual’s health conditions or that of their family members.
    • Military Service: Whether the individual or their family members have served in the U.S. military.
    • Public Safety and Security: Whether the individual poses a threat to public safety or national security, including their criminal history.
  3. Benefits of Prosecutorial Discretion:
    • Provides temporary relief from deportation and allows individuals to remain in the U.S.
    • Allows immigration enforcement agencies to focus on high-priority cases involving serious criminals and threats to public safety.
    • Helps maintain family unity and protect vulnerable individuals.
  4. Limitations:
    • Prosecutorial discretion does not grant legal status or a path to citizenship.
    • Decisions are case-specific and made on a discretionary basis, meaning there is no guarantee of relief.
    • The policy and implementation of prosecutorial discretion can change with different administrations.
  5. How to Request Prosecutorial Discretion:
    • Individuals can submit a request for prosecutorial discretion to ICE or the Office of the Principal Legal Advisor (OPLA). The request should include relevant supporting documentation, such as evidence of family ties, community involvement, and any other factors that support the case for discretion.
  6. Legal Assistance:
    • Seeking the assistance of an experienced immigration attorney can greatly enhance the chances of a successful request for prosecutorial discretion. An attorney can help prepare a comprehensive request, gather necessary documentation, and advocate on behalf of the individual.

For more detailed information on prosecutorial discretion in immigration law and how to request it, visit this comprehensive resource: Prosecutorial Discretion.

Understanding the role and scope of prosecutorial discretion can provide critical relief for individuals facing deportation and help them navigate the complexities of immigration law with the support of legal professionals.